Legalise Drunk Driving

[Note: This column was written before the news came out that George W. Bush was arrested on a DUI charge 24 years ago. He was stopped in Maine for driving too slowly and briefly veering onto the shoulder of the road.]

Clinton has signed a bill passed by Congress that orders the states to adopt new, more onerous drunk-driving standards or face a loss of highway funds. That’s right: the old highway extortion trick. Sure enough, states are already working to pass new, tighter laws against Driving Under the Influence, responding as expected to the feds’ ransom note.

Now the feds declare that a blood-alcohol level of 0.08 percent and above is criminal and must be severely punished. The National Restaurant Association is exactly right that this is absurdly low. The overwhelming majority of accidents related to drunk driving involve repeat offenders with blood-alcohol levels twice that high. If a standard of 0.1 doesn’t deter them, then a lower one won’t either.

But there’s a more fundamental point. What precisely is being criminalized? Not bad driving. Not destruction of property. Not the taking of human life or reckless endangerment. The crime is having the wrong substance in your blood. Yet it is possible, in fact, to have this substance in your blood, even while driving, and not commit anything like what has been traditionally called a crime.

What have we done by permitting government to criminalize the content of our blood instead of actions themselves? We have given it power to make the application of the law arbitrary, capricious, and contingent on the judgment of cops and cop technicians. Indeed, without the government’s “Breathalyzer,” there is no way to tell for sure if we are breaking the law.

Sure, we can do informal calculations in our head, based on our weight and the amount of alcohol we have had over some period of time. But at best these will be estimates. We have to wait for the government to administer a test to tell us whether or not we are criminals. That’s not the way law is supposed to work. Indeed, this is a form of tyranny.

Now, the immediate response goes this way: drunk driving has to be illegal because the probability of causing an accident rises dramatically when you drink. The answer is just as simple: government in a free society should not deal in probabilities. The law should deal in actions and actions alone, and only insofar as they damage person or property. Probabilities are something for insurance companies to assess on a competitive and voluntary basis.

This is why the campaign against “racial profiling” has intuitive plausibility to many people: surely a person shouldn’t be hounded solely because some demographic groups have higher crime rates than others. Government should be preventing and punishing crimes themselves, not probabilities and propensities. Neither, then, should we have driver profiling, which assumes that just because a person has quaffed a few he is automatically a danger.

In fact, driver profiling is worse than racial profiling, because the latter only implies that the police are more watchful, not that they criminalize race itself. Despite the propaganda, what’s being criminalized in the case of drunk driving is not the probability that a person driving will get into an accident but the fact of the blood-alcohol content itself. A drunk driver is humiliated and destroyed even when he hasn’t done any harm.

Of course, enforcement is a serious problem. A sizeable number of people leaving a bar or a restaurant would probably qualify as DUI. But there is no way for the police to know unless they are tipped off by a swerving car or reckless driving in general. But the question becomes: why not ticket the swerving or recklessness and leave the alcohol out of it? Why indeed.

To underscore the fact that it is some level of drinking that is being criminalized, government sets up these outrageous, civil-liberties-violating barricades that stop people to check their blood — even when they have done nothing at all. This is a gross attack on liberty that implies that the government has and should have total control over us, extending even to the testing of intimate biological facts. But somehow we put up with it because we have conceded the first assumption that government ought to punish us for the content of our blood and not just our actions.

There are many factors that cause a person to drive poorly. You may have sore muscles after a weight-lifting session and have slow reactions. You could be sleepy. You could be in a bad mood, or angry after a fight with your spouse. Should the government be allowed to administer anger tests, tiredness tests, or soreness tests? That is the very next step, and don’t be surprised when Congress starts to examine this question.

Already, there’s a move on to prohibit cell phone use while driving. Such an absurdity follows from the idea that government should make judgments about what we are allegedly likely to do.

What’s more, some people drive more safely after a few drinks, precisely because they know their reaction time has been slowed and they must pay more attention to safety. We all know drunks who have an amazing ability to drive perfectly after being liquored up. They should be liberated from the force of the law, and only punished if they actually do something wrong.

We need to put a stop to this whole trend now. Drunk driving should be legalized. And please don’t write me to say: “I am offended by your insensitivity because my mother was killed by a drunk driver.” Any person responsible for killing someone else is guilty of manslaughter or murder and should be punished accordingly. But it is perverse to punish a murderer not because of his crime but because of some biological consideration, e.g. he has red hair.

Bank robbers may tend to wear masks, but the crime they commit has nothing to do with the mask. In the same way, drunk drivers cause accidents but so do sober drivers, and many drunk drivers cause no accidents at all. The law should focus on violations of person and property, not scientific oddities like blood content.

There’s a final point against Clinton’s drunk-driving bill. It is a violation of states rights. Not only is there is no warrant in the Constitution for the federal government to legislate blood-alcohol content — the 10th amendment should prevent it from doing so. The question of drunk driving should first be returned to the states, and then each state should liberate drunk drivers from the force of the law.

November 3, 2000

Llewellyn H. Rockwell, Jr. [send him mail], former publications editor to Ludwig von Mises and congressional chief of staff to Ron Paul, is founder and chairman of the Mises Institute, executor for the estate of Murray N. Rothbard, and editor of LewRockwell.com. See his books.

Okay, good points all around… but this does not advance the case for liberty with non-libertarians in my view. Sure, blood tests violate rights… but maybe rights should be violated to make roads safer for all of us. I appreciate this logic, but can see how this will make others go; “see, these libertarians are a bunch of fundamentalist freaks so hell-bent on rights that they lose sight of all practicality.”. Surely allowing drunks onto the road will have bad consequences. This argument fails to explain how roads can be made safer AND rights be respected. A simple “right of admission reserved” by private owners of roads who have a profit incentive to keep drunks away from their sober customers works well elsewhere and should have been stressed a bit more in this context.

In my opinion, this article goes straight to the heart of the libertarian position on crime, rights, safety, precautionary principles, etc.

You cannot be punished for a crime that has not yet been committed.
A crime must have a victim.

If you allow prosecution based only on the contents of your bloodstream, why not prosecute people with malaria (they get dizzy and delusional), flu, haemophilia? Why not do a regression on blood types associated with criminal behaviour, then prosecute people with those blood types, “just to be safe”. Why stop at blood contents? What about skin colour (more black people involved in accidents), IQ (more stupid people involved in accidents), emotional state (more depressed people involved in accidents). Heck, I’m sure you’ll find that ugly people are involved in more accidents.

Just because “it seems obvious” does not make alcohol blood tests useful, effective or right. I’m all in favour of setting minimum driving standards (no weaving, obeying street signs, avoiding collisions) and enforcing these as possible precursors to an accident. I’m even OK with pulling a guy off who is obviously not in control of his behaviour (due to drink, testosterone poising, being a bodyguard, etc). But simply randomly testing private citizens for an arbitrarily determined acohol content, independent of other indicative behaviour, that is a critical invasion of our rights.

I agree with Trevor. Actually the title of the original article is not correct. We don’t want to legalize drunks driving when they are not in control. It should be “Scrap the random alcohol blood content testing of drivers in their cars”

Your post is logically sound. But as mentioned in the first comment, its practicality is questionable.

I’ll start by clarifying that prejudice against individuals for their blood-alcohol level is not the same as prejudice against DRIVERS for their blood-alcohol level. (According to Steven Levitt, you are more likely to die of an alcohol-related accident as a drunk pedestrian than as a drunk driver. But I guess the law isn’t as concerned if you’re only doing yourself harm.) Obviously *drivers* with high blood-alcohol levels are endangering others.

If I shoot you, with the intent to kill you, but you survive only because you live nearby to a hospital, most legal systems will find me guilty of attempted homicide. But what did I really do? Nothing more than detain you in a hospital for a little while.

The same applies to driving towards your car while drunk. Perhaps I hit your car at a combined speed at impact of 280 km/h. (You were keeping the speed limit; I wasn’t.) Perhaps I miss. Am I only guilty if I hit you? Am I less guilty if you have airbags and crumple zones?

Then we get to the matter of practicality. A particularly overweight and unfit individual with a well-conditioned liver may be able to drive perfectly well after quaffing a six-pack. His super-fit, underweight, dehydrated, tea-totalling twin may start to feel woozy after half a beer. Unfortunately the cops, certainly in this country, don’t have the resources to treat each case on an individual basis.

So either they do as you suggest, and wait until someone is dead before finding anyone guilty, or they try to preempt that by choosing an arbitrary blood-alcohol level, and finding people guilty of potential homicide by crossing it.

You are, of course, as you say, welcome to voice your opinion. I wouldn’t have it any other way. And public roads are as much yours as they are mine. But I must say I bet your and my insurance premiums, and tax (not to mention longevity) are better the way things are at the moment. They might be even better if the government were capable of enforcing our drunk driving laws. Hmmm. That might mean higher tax, but lower premiums; longer life expectancy but fewer civil liberties. The points chosen on every scale by the bloated committee of democracy are always arbitrary. We both value reason and logic, but the practicalities of life are seldom black and white, nor, as much as we hate it, even consistent.

First of all, let me acknowledge that drunk driving IS a difficult and contentious issue. I know many people injured or killed by out of control drivers. I regret every such injury. But an extreme issue like this helps focus one’s thinking on the REAL issues at play.

Libertarians believe you are responsible for the CONSEQUENCES of your actions, deliberate or accidental. Your intentions, whether good or bad, do not modify the consequences of your actions, and your responsibility for them. Of course there are grey areas. The veiled Muslim girl in the marketplace, as described in “The Consent Axiom“, is such a case. Although I concede it is a cop-out, such grey areas would be resolved by a jury in my consenting society.

The core of this issue, the morality of pre-emptive action, is best summarised in a line from an Andy Capp cartoon – “I thought he was going to hit me, so I hit him back first”. The problem is that this leads, via the precautionary principle, to the insanely over-regulated world in which we now find ourselves, where fairness and consistency is replaced by government fiat. Should we ban bananas, because people may slip on their skins? Should we ban high-rise buildings because people may jump from them?

How does this approach work in practice? In the past, you could drive at any speed you liked on the German Autobahns. If you went on an autobahn, you knew there would be some very high speed vehicles around you – your choice. If you caused an accident, for whatever reason, you were 100% responsible for all the costs arising from that accident. The road authority could fly an entire operating theatre to any location on the autobahn in less than 1 hour, entirely at the cost of the person judged to have caused the accident. The system worked well, but was finally replaced by a nanny state decision to limit speeds and responsibilities.

You can choose to limit the alcohol content of drivers blood, if you own the road. You can put in elaborate measures to enforce this. Most drivers, drunk or sober, will safely complete their journeys. An unlucky few, drunk or sober, will not. This will not change.

P.S. One more thought, about criminals and punishment. Punishment seems to be a popular approach. Why? Is it because it’s a great form of revenge, exacted by society, on behalf of a victim, on the perpetrator? If so, then it makes perfect sense that to be a criminal requires successfully creating a victim. If Alice shoots at Bob and misses, Alice is innocent, because there is no victim.

However, if punishment is considered a form of rehabilitation (or in the case of criminals considered incapable of rehabilitation, then a form of removing them from society permanently) then Alice is in need of rehabilitation (or removal) whether she succeeds in killing Bob or not. Without rehabilitation or separation from Bob, it seems very likely that Bob’s liberty will come to a sudden end. Yes, “very likely” is a slippery slope. How do you prove that “very likely” is sufficiently likely to violate Alice’s liberty by separating her from Bob until you are sure she won’t try again? You prove it by showing that (1) she has already tried in the past, (2) her motive remains unchanged, and (3) she still has the means to try again. Until either (2) or (3) is changed, Bob’s liberty is impeded for fear of his life.

(We might even consider finding better forms of rehabilitation than imprisonment. There are many ways of changing someone’s motives. Some of them are quite pleasant.)

Lew Rockwell seems to skip over the fact that getting into a car drunk, or tired, or in any way unfit to control a deadly weapon on wheels, is an action. And that is the action that needs to change — not the success or failure in actually harming someone. “… many drunk drivers cause no accidents at all” is not logically conclusive. It shows neither that drunk drivers are less likely to cause harm than sober drivers, nor does it show that a drunk driver who has not caused an accident in the past will not cause one in the future. Until Lew is unable to get into a car drunk or tired, or (preferably) he no longer wants to, the liberty of anyone in or near Lew’s car is restricted by means of the threat of violence, whether the violence is intentional or accidental.

Blood tests and breathalizers are probably the most practical way of testing whether Lew’s driving negatively affects those around him. If Lew can think of a method that is both more accurate AND more practical, I’m sure the US government will be interested.

getting into a car drunk, or tired, or in any way unfit to control a deadly weapon on wheels, is an action. And that is the action that needs to change — not the success or failure in actually harming someone.

I am sure that you, like me, have driven on a long distance journey while tired. You have lost concentration for just a moment, and veered over the centre line, to be jerked awake by a wildly hooting car coming from the other direction. Thankfully, nothing at all has happened – you pass like ships in the night, one angry, one remorseful. What punishment is appropriate for you now? Should you drive to the nearest police station and confess? Or do you say, “Nothing happened, no consequences. Be more careful next time”. Only consequences count.

Hi Trevor. Thank you for your reply. I think this is an interesting issue, because several factors are at play.

I also believe you are responsible for the consequences of your actions. But I don’t think that’s the full picture.

I’m sure that a libertarian would feel that the threat of harm or violence impinges on their freedom. If I point a gun at you, and tell you that if you perform a specific act there is a 100% chance that I will shoot you, are you as free as you were before I pointed the gun at you?

What if I reduced that chance to 50%? And 0.001%?

Driving a car when you are unfit to drive threatens the freedom of others. It is the THREAT that is the action with the consequences.

Do you know how many black people were lynched by the Ku Klux Klan? Surprisingly few! But it was the act of THREATENING violence that altered the behaviour of black people in the South.

Therefore there is nothing pre-emptive about stopping someone who is unfit to drive. The action has already been taken by the driver.

I get your point, but the Andy Capp cartoon is not a good summary. Firstly, it may be possible to deter someone from a harmful act without harming them. That would be pre-emptive action, but not necessary action that anyone would object to. Secondly, there is no explanation of why Andy Capp thought he was about to be hit. Was it just a hunch, or did the guy smash down his door, shouting profanities at him, and swinging a baseball bat?

It is a slippery slope, but I think there are clear milestones all the way down, and reasonable people would be able to draw a reasonable line somewhere, albeit arbitrary.

reasonable people would be able to draw a reasonable line somewhere, albeit arbitrary

I think we are essentially in agreement on this difficult issue, differing perhaps in degree rather than in principle. Difficult situations such as you describe would be resolved by a jury of reasonable men applying reasonable judgements. I, too, would stop a falling down drunk from getting in a car, at the risk of later being accused of infringing his freedom. I would assume a jury would respect my position, but take the risk that they might think I exceeded my authority.

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